However, there is precedent concerning shareholder voting in general. For example, in Akasa Holdings, LLC v Sweet, 115 A.D.3d 556 (1st Dep't 2014), the Appellate Division, First Department held that because "[p]laintiff is seeking to vindicate its right as a shareholder to elect directors its claims [for equitable relief] are individual, not derivative[.]" Akasa, 155 A.D.3d at 556 (citing Eisenberg v. Flying Tiger Line, Inc., 451 F.2d 267 (2d Cir. 1971), in which the Second Circuit emphasized in dicta that plaintiff's cause of action to enjoin a reorganization was personal because the stockholder complained that the reorganization would deprive him of a voice in the affairs of the previously existing operating company).

The court is concerned "with what the parties intended...only to the extent that they evidenced what they intended by what they wrote." Akaska Holdings, LLC v Sweet, 115 AD3d 556 (1st Dept. 2014) quoting Ashwood Capital Inc. v OTG Mgt., Inc., 99 AD3d 1, 7 (1st Dept. 2012). "[I]t is not a court's function to imply a term to save [a party] from the consequences of an agreement that it drafted."

The correct focus of the Court's inquiry is to discern “what the parties intended .... [and] only to the extent that they evidenced what they intended by what they wrote. ” Akasa Holdings, LLC v. Sweet, 115 AD3d 556, 557 (1st Dep't 2014) (emphasis added). The absence of a provision in the Letter Agreement requiring the issuance of stock certificates or any other tangible act of memorialization is evidence the parties' intent not to impose such a requirement.

The court is concerned "with what the parties intended...only to the extent that they evidenced what they intended by what they wrote." Akaska Holdings, LLC vSweet, 115 AD3d 556 (1 Dept. 2014) quoting Ashwood Capital Inc. v OTG Mat., Inc., 99 AD3d 1, 7 (1 Dept. 2012). An "agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms." Greenfield v Philles Records, Inc., 98 NY2d at 569; see MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 (2009); Ashwood Capital. Inc. v OTG Management, Inc., 99 AD3d 1; 150 Broadway N.Y. Associates, LP v Bodner, 14 AD3d 1 (1 Dept. 2004). A contract is unambiguous and may not be altered if "on its face it is reasonably susceptible of only one meaning.

The court is concerned "with what the parties intended...only to the extent that they evidenced what they intended by what they wrote." Akaska Holdings, LLC v Sweet, 115 AD3d 556 (1st Dept. 2014) quoting Ashwood Capital Inc. v OTG Mqt. Inc., 99 AD3d 1, 7 (1st Dept. 2012).

The court is concerned "with what the parties intended...only to the extent that they evidenced what they intended by what they wrote." Akaska Holdings, LLC v Sweet, 115 AD3d 556 (1 Dept. 2014) quoting Ashwood Capital Inc. v OTG Mqt., Inc., 99 AD3d 1, 7 (1 Dept. 2012). Here, the executed lease, rider, and assignment agreement submitted by the plaintiff are clear and unambiguous that the plaintiff's written consent upon the defendants' notice of vacatur or surrender of the premises is required to terminate the lease before its expiration.

The court is concerned "with what the parties intended...only to the extent that they evidenced what they intended by what they wrote." Akaska Holdings, LLC v Sweet, 115 AD3d 556 (1st Dept. 2014) quoting Ashwood Capital Inc. v OTG Mat., Inc., 99 AD3d 1, 7 (1st Dept. 2012). "[I]t is not a court's function to imply a term to save [a party] from the consequences of an agreement that it drafted."

In opposition, plaintiffs fail to raise a triable issue of fact. That Sutz and Curt have interests in St. Gervais. which is a Member of Preservation, does not make them Members of Preservation (and therefore ineligible to receive bonuses under Section 4.2 [iii]). Plaintiffs' contention that Curt was not "office staff" because he was not formally employed by any Deane entity until after the refinancing simply ignores the copious evidence in the record that Curt was working for his uncle, out of the SCA offices, on the Starrett City transactions. There is no real basis for holding that the term "office staff" cannot apply to Sutz, Poll or Curt, who all worked for the Deanes on Starrett City. Plaintiffs' contention that the parties to the Preservation Agreement actually intended to provide the bonuses to certain administrative employees is unavailing, as the court is "concerned with what the parties intended only to the extent that they evidenced what they intended by what they wrote" (Akasa Holdings, LLC v Sweet, 115 AD3d 556 [1st Dept 2014] [citation omitted]). On this point (in addition to defendants' submissions) see Veit affirmation exhibit 5, pp. 313-14 (Curt's testimony regarding his involvement in the bid process), as well as exhibits 36, 37, 38, 40, 42, 46, 47, 48 and 54 (emails from or to Curt involving the sales/refinancing effort).

“[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms,” and “[e]vidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing” (W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162 [1990] ). Thus, since the written Investment Agreement between the plaintiff and Basel was unambiguous, parol evidence to add terms to this agreement is inadmissible (see Emerald Equip. Sys., Inc. v. Gearhart Bros. Servs., LLC, 115 AD3d 1187, 1188 [4th Dept 2014] ; Akasa Holdings, LLC v. Sweet, 115 AD3d 556, 557 [1st Dept 2014] ; Bond Safeguard Ins. Co. v. Forkosh, 107 AD3d 750, 751 [2d Dept 2013] ). Consequently, dismissal of plaintiff's complaint as against Basel is also mandated pursuant to CPLR 3211(a)(8) based upon a lack of personal jurisdiction.

The court is concerned "with what the parties intended...only to the extent that they evidenced what they intended by what they wrote." Akaska Holdings, LLC v Sweet, 115 AD3d 556 (1st Dept. 2014) quoting Ashwood Capital Inc. v OTG Mot., Inc., 99 AD3d 1, 7 (1st Dept. 2012). Contrary to the plaintiff's contention, the contract negotiated and signed by the parties is not clear and unambiguous on its face so as to warrant summary judgment in its favor on the breach of contract claim.